Drawing Lines in Law Books and on Sandy Beaches: Marking Ordinary High Water on Michigan's Great Lakes Shorelines under the Public Trust Doctrine

Abstract

In 1968 the Michigan Legislature adopted an elevation-based approach for discerning the ordinary high water mark (OHWM) along the state's Great Lakes shorelines pursuant to the public trust doctrine. In 2005 the Michigan Supreme Court reaffirmed that Michigan's public trust interest extends up to the OHWM, but it articulated a different standard for discerning that OHWM, noting in passing that the state's statutory standard relates only to certain regulatory authorities. The court left unresolved the questions of exactly how these two methods of marking ordinary high water relate to one another and precisely how far up the shore the state's authorities to regulate private shoreline development extends. We first describe how the Great Lakes states, including Michigan, have adapted the public trust doctrine to their Great Lakes shorelines, particularly in terms of demarcating boundaries. We then discuss attributes of the Great Lakes that make those efforts problematic and present original data on changing water levels and shoreline profiles along Lake Michigan over time. Based on that analysis, we conclude that while use of an OHWM on Great Lakes shorelines makes sense, the state's statutory elevation-based OHWM standard makes little sense given Great Lakes shoreline dynamics. We identify further legal and policy issues the state will likely confront as it attempts to mark OHW in the foreseeable future given both the state of the law and the nature of the Great Lakes.